Costello v South Eastern Sydney Area Health Service

[2001] NSWSC 751

CITATION:	Costello v South Eastern Sydney Area Health Service [2001] NSWSC 751
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20161/00; 20119/01
HEARING DATE(S):	29 August 2001
JUDGMENT DATE:	31 August 2001
PARTIES :	Sean Costello by his tutor Kathleen Francis Costello Kathleen Francis Costello Gary Costello South Eastern Sydney Area Health Service
JUDGMENT OF:	Sperling J at 1

COUNSEL :	D Grahame for the Plaintiffs S Woods for the Defendant
SOLICITORS:	Carroll & O'Dea Solicitors for the Plaintiffs Lynn Boyd Soliicitor for the Defendant
CATCHWORDS:	Practice and procedure - separate trial - no question of principle
DECISION:	1. That the question of the defendant’s liability for the condition of cerebral palsy suffered by the plaintiff, Sean Costello, including the question of causation of that condition, be decided separately and before any further trial in the proceedings; 2. Costs of the motion, costs in the cause.

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IN THE SUPREME COURT
OF NEW SOUTH WALES

Common Law Division

31 August 2001
Sperling J
20161/00 Sean Costello by his tutor Kathleen Francis Costello v South Eastern Sydney Area Health Service
20119/01 Kathleen Francis Costello & Anor v South Eastern Sydney Area Health Service

Judgment

1    Sean Costello was born at Sutherland Hospital on 4 March 1998. He is now 3½ years old. He has cerebral palsy and is gravely disabled by the condition. That is common ground.

2    In proceedings 20161/00, the child, by his tutor, sues South Eastern Sydney Area Health Service. In proceedings 20119/01, his parents sue the service.

3    The proceedings have issues in common in relation to liability and causation. The plaintiffs assert negligence by the defendant in the management of the delivery and in care of the child immediately after birth. Negligence is denied. The causation of the child’s condition is also in issue.

4    The plaintiffs seek a trial of those issues prior to and separate from any hearing to quantify damages.

5    The uncontested evidence is that the true nature and extent of the child’s condition and the implications for expenditure on appropriate care cannot be reliably assessed until the child is at least 5 years of age.

6    Medical reports on liability and causation have been exchanged. Some of the expert witnesses provide evidence going to those issues and also to quantum of damages. There is, therefore, a prospect that some expert witnesses who gave evidence at a separate trial might also give evidence at the later trial.

7    The defendant’s evidence includes an opinion by Dr W G J Reid, a neuropsychologist, that neurological testing “can assist in the determination of the type and timing of processes (causing the condition)”. That, as I understand it, suggests that such tests might establish the child’s brain damage as being antepartum, intrapartum and postpartum, which would be highly relevant to the causation issue. Dr Reid says that tests are not reliable if attempted too early. An appointment has been made for 4 December 2001 which he apparently regards as satisfactory.

8    It is highly unlikely that a fixture for a separate hearing could be provided earlier than some time in 2002 if an order were made at this moment. The defendant should be allowed the opportunity of carrying out the tests recommended by Dr Reid in any event.

9    The defendant says the proceedings are not ready for trial. There is the testing by Dr Reid, and supplementary expert medical evidence may be necessary as a result. There are also some other minor matters to be attended to.

10    Having read the medical reports, I would also contribute that this is quintessentially a case for a meeting of expert witnesses. Apart from the possibility of consensus emerging on some matters thought to be in question, there is a need to focus the attention of the expert witnesses on the precise allegations of negligence and causation which arise. (I would mention, in passing, that the plaintiffs may decide that only those experts who deal principally with the issues of liability and causation need be offered on those issues. The court might make that direction anyway. So the number of experts involved in a conference on liability and causation might well be substantially less than is presently thought.) Any such meeting should occur after Dr Reid’s tests and after the medical experts have had an opportunity to comment on his report.

11    These points go however, not so much to whether there should be a separate trial, but rather to the timing of any such trial.

12    In favour of a separate trial, there is the prospect of determining the issues of liability and causation closer to the event and, therefore, potentially, with greater reliability. If either of the separate issues were decided against the plaintiffs, there is likely to be a substantial saving in costs and court time by avoiding an unnecessary hearing on damages. (Of course, quantum might be agreed in advance, but that is not usually the case.) Also, as the plaintiffs argue, correctly, a favourable determination of the separate issues would facilitate an application for an interim award of damages, to the plaintiffs’ legitimate advantage. These are cogent considerations.

13    The plaintiffs also say that a favourable determination of the issues proposed for a separate trial would facilitate an accommodation in relation to quantum, with the prospect of avoiding a further hearing. I give little weight to that consideration. It is off-set by the consideration that the prospect of an over-all settlement is, in my experience, highest when all issues are prepared for the a single trial. An order for a separate hearing might therefore reduce rather than increase the prospect of an all-in settlement before trial.

14    The defendant argues that, prima facie, all issues should be decided at the one trial. A balance of interest against the usual practice has to be shown. This is so. Apart from that point, however, the only cogent argument against a separate trial in this case is the possibility that some of the experts might be called to give evidence at both hearings with the possibility of inconsistent impressions being formed by the trial judge (or the trial judges) in relation to the credibility or reliability of a witness. That would be unfortunate but it would not vitiate the proceedings and the prospect of such an eventuality is very unlikely.

15    The balance is strongly in favour of a separate trial.

16    The plaintiffs seek an order that costs of the motion be costs in the cause. I should accede to that.

17    A conference hearing is appointed for 7 September. That should stand. Directions should be formulated for anything to be done at this stage and in connection with Dr Reid’s tests. A further conference hearing should then be appointed in, I would suggest, February 2002. The lawyers should discuss that.

18    The orders in each of the proceedings are as follows.

(1) That the question of the defendant’s liability for the condition of cerebral palsy suffered by the plaintiff, Sean Costello, including the question of causation of that condition, be decided separately and before any further trial in the proceedings.
(2) Costs of the motion, costs in the cause.
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Last Modified: 09/03/2001